Dynamics of Democracy : Administrative Law and the Process of Institutional Changes in Taiwan

Transcription

1 Academia Sinica From the SelectedWorks of Cheng-Yi Huang May 22, 2014 Dynamics of Democracy : Administrative Law and the Process of Institutional Changes in Taiwan Cheng-Yi Huang, Academia Sinica Available at:

2 Dynamics of Democracy - Administrative Law and the Process of Institutional Changes in Taiwan Cheng-Yi Huang Assistant Research Professor, Academia Sinica, Taiwan [D]emocratic politics entails a government based on popular will. Yet regardless of the changes of the ruling party or different compositions of the cabinet, any change to policy guideline or major policies should nevertheless go through the constitutional mechanism of check and balance upon which the constitutional order is based. Under the rule of law, procedural legality cannot be replaced with legitimate political reasons. - Judicial Interpretation No. 520, The Council of Grand Justices, January 15, 2001 High-level politicians, he commented ruefully, have made political issues very [complicated]. But if ordinary administrators such as those gathered that day were forced to consider these political concerns, well, as he saw it, the nation really had no hope. - Interview with Mr. Ke, an urban-planning administrator in the Taipei City Government 1 Taiwan is an island country whose territory is as large as Belgium but whose population is two times larger than that of Belgium. After rapid industrialization in the 1970s, its living environment deteriorated sharply as its economy was taking off. Since the 1980s, there has been a flourishing of social protests against environmental pollution resulting from state-directed industrial-development projects. Environmentalism in Taiwan has been intertwined with the process of 1 Excerpt from Anya Bernstein, Why Taiwan Is Too Democratic : Legitimation, administration, and political participation in Taipei (2007) (unpublished Ph.D. dissertation, University of Chicago) (on file with the University of Chicago Library). For transliterations in the text, Chinese names come in their original order, which means family name first and then first name. But for bibliographical information in the footnotes, I follow the word-order formats in the original publications. If the publication is in Chinese, the rule for Chinese names applies. 1

3 democratization and has helped foster public consciousness against authoritarian regulatory regimes. 2 Most of the environmental protests occurred not in cities but in villages close to foreign-invested factories or industrial zones. It is thus argued that Taiwan s antipollution protests are characteristically communal in orientation. 3 Not surprisingly, the grassroots-based environmentalism attracted considerable attention from the party-state controlled by the Kuomintang (KMT, the Chinese Nationalist Party). In the early 1980s, the KMT government just managed to consolidate its authority after a series of diplomatic failures and political unrest. 4 It brutally oppressed the opposition force in the Kaohsiung Incident in 1979 and allegedly murdered anti-kmt political and academic elites like Dr. Chen Wen-chen and the family of Lin Yi-hsiung, a prominent lawyer in the opposition camp during the early 1980s. These Political upheavals made the authoritarian regime more attentive to social issues that might arouse political movement. Therefore, in the last few years of its authoritarian rule, the KMT government started to channel environmental issues within governmental branches. 5 Meanwhile, since environmental affairs involve technical expertise and professional knowledge, the government also employed administrative regulations envisaged by technocrats to respond to these social challenges. One month after the lifting of martial law in 1987, the KMT government created the Environmental Protection Agency (TEPA) in Taiwan. 6 As Yeh Jiunn-rong pointed out, a variety of environmental legislation appeared in the legislative agenda after the establishment of the TEPA. 7 One of the prominent characteristics of this trend is that this legislation has delegated broad law-making power to agencies and has, omitted public participation in the policymaking process. Therefore, technocrats in the TEPA usually have handled environmental issues with wide delegated 2 Ming-sho Ho & Feng-san Su, Control by Containment: The politics of institutionalizing pollution disputes in Taiwan, in ENVIRONMENT AND PLANNING, 2402, 2405 (2008). 3 Ming-sho Ho, Weakened State and Social Movement: The paradox of Taiwanese environmental politics after the power transfer, 14 JOURNAL OF CONTEMPORARY CHINA 339, (2005). 4 The Republic of China, which was represented by the KMT government, withdrew its membership from the United Nations in 1971 and broke off its highly privileged relations with the United States, Taiwan s major political sponsor, in January MING-SHO HO, GREEN DEMOCRACY: A STUDY ON TAIWAN S ENVIRONMENTAL MOVEMENT (2006). 6 Taiwan s Environmental Protection Agency was established on August 22, The martial law was ended on July 15, For a general introduction to environmental law in Taiwan, see Dennis T. C. Tang, New Developments in Environment Law and Policy in Taiwan, 6 PACIFIC RIM LAW AND POLICY JOURNAL 245 (1997). 7 YEH JIUNN-RONG, MASS ENVIRONMENTAL LEGISLATION: THE PATTERN, PROBLEMS AND DEVELOPMENTS OF TAIWAN S ENVIRONMENTAL LEGISLATION, ENVIRONMENTAL POLICY AND LAW (1993). 2

4 legislative power, which has turned out to legitimize its regulatory power over environmental issues in Taiwan s transition to democracy. During political liberalization in the mid-1980s, the Constitutional Court in Taiwan, namely the Council of Grand Justices, expanded its jurisdiction through a variety of administrative law cases. 8 It first tested the political waters by applying German Rechtsstaat doctrine to tax cases, which constituted the major part of administrative law cases under the authoritarian regime. After 1987, the KMT remained the power-holder, controlling political-economic resources and never having to confront the effects of lustration, in contrast to the Communist Party in Central and Eastern Europe after the fall of the Berlin Wall. Meanwhile, the opposition forces had united together to forge a rival party, the Democratic Progressive Party (DPP), continuingly challenging the political hegemony of the KMT. 9 Against this background, the post-authoritarian politics in Taiwan faced endless political stalemates between the two united parties in the national legislature, namely the Legislative Yuan. During this period, the Constitutional Court s interpretations in respect to administrative law were no longer limited to tax cases, having extended to other social-political issues. 10 Like its counterparts in Central and Eastern Europe, the Constitutional Court in Taiwan became more and more critical to the political process. In 2000, the KMT finally stepped down from power after fifty years of one-party rule. For the first time, a non-kmt candidate Chen Shui-bian of the DPP won the presidential election, with 39.30% of the total valid votes, in 2000 and was reelected in 2004 with 50.11% of the votes. In the eight years of DPP administration, the antagonism between the DPP and the KMT escalated into a zero-sum game sweeping across all political issues. The KMT coalition formed a majority in the Legislative Yuan throughout the eight years of the DPP administration. Mass media in Taiwan was filled with pro-china cultural elites who were extremely hostile to the local political powers like the DPP. Pro-China mass media depicted the DPP administration as a corrupted power. In the meantime, fundamental administrative codes like the Administrative Procedure Law of 1999 (TAPL) and the 8 TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES (2003). 9 For the formation of an opposition party in Taiwan and its road to rule, please refer to SHELLEY RIGGER, FROM OPPOSITION TO POWER: TAIWAN S DEMOCRATIC PROGRESSIVE PARTY (2001). 10 The 1947 Constitution of the Republic of China adopted the Austrian model of constitutional courts, which means that the constitutional court does not hear cases as normal courts would and does not render judgments on specific cases. It provides constitutional review of normative acts as preventive norm-control (präventive Normenkontrolle) on the basis of applications for constitutional review to the Council. After the amendment to the Constitutional Interpretation Procedure Act in 1993, the scope of applicants included government agencies, legislators (application threshold: one-third of the seats in the Legislative Yuan), people whose rights were infringed, and judges. See WU GENG, XIANFA DE JIESHI YU SHIYUNG (The interpretation and application of the constitution) 356 (2003). 3

5 Freedom of Information Act of 2005 (FIA) went into effect. These pieces of legislation provide a wide range of ex ante and ex post procedural mechanisms to constrain the executive power. The DPP administration had to deal with not only the antagonistic KMT-dominated Legislative Yuan but also the severe legal constraints provided in the TAPL and the jurisprudence of the Constitutional Court. Since the dusk of the authoritarian regime, the Council of Grand Justices has been invoking German legal doctrines like the principle of administration based on law (Deer Grundsatz der Gesetzmässigkeit der Verwaltung) to strike down administrative rules and decisions. Under this overarching principle, the Council frequently has cited two sub-doctrines to constrain the rulemaking power of the executive branch: the reservation for statutes doctrine (Vorbehalt des Gesetzes) and the intelligible principle (Der Grundsatz der Bestimmtheit). 11 The former mandates that administrative action should be made on the basis of legislative delegation, and the latter mandates that the content, scope, and purpose of legislative delegation should be specified in statute. 12 These two doctrines have constituted the basis of the judicial review of administrative action for the Council in the past two decades. The Council has vigorously applied these doctrines in order to strike down various administrative rules under the authoritarian regime. However, the Council appears to have loosened its stringent standards of judicial review in recent cases. In this chapter, we focus on a controversial case regarding the TEPA s regulation of environmental affairs as treated by the Council s Interpretation No. 612 of In this case, the Council granted the environmental agency more room in which to carry out its policies of waste-disposal management, which is a thorny issue for many local governments in Taiwan. After Interpretation No. 612, there were nine cases involving legislative delegation, and only three of them were struck down on the basis of the intelligible principle. Though the Council never publicly expressed its turn to judicial self-restraint in respect to public policy, the fierce debate that arose in relation to appeared in Interpretation No. 612 has not again been seen in recent cases. In the following sections, I first contextualize the development of administrative law in Taiwan from two perspectives: bureaucratic operations and legislative campaigns. I try to locate this development on a long-term horizon and to identify how the authoritarian regime and democratization have affected the pattern of administrative rulemaking. In the second section, I discuss why Taiwan passed its Administrative Procedure Law (TAPL) in After comparing three existing 11 WU GENG, XINGZHENGFA ZHI LILUN YU SHIYUNG (The theory and practice of administrative law) 65-66, (7 th ed. 2001). 12 For the Council s application of the former doctrine, please see Interpretation No. 167, 210, 251, 268, 274, 384, and 443; for the latter doctrine, please see Interpretation No. 345, 346, 394, 426, 432, and

6 theories about TAPL, I submit my own model of the legitimacy race among political parties. Furthermore, I discuss the results of legislative overreaction induced in the race for legitimacy. In the third section, I argue that the Council tried to ameliorate the rigid effects of legislative overreaction by micromanaging its standards of judicial control of administrative action so as to resolve the endless stalemates between the executive and the legislature Bureaucrats Administration in a Developmental State As many scholars of law and development have noted, unfettered technocratic discretion is one of the key elements that have led to the astounding success of NIEs in East Asia and, specifically, in places such as Singapore, South Korea, and Taiwan. 13 The Taiwan government under the KMT, by freely deciding whose interests should be protected and sustained, fundamentally bypassed the due process of law. Actually, such a regulatory pattern of technocrat-centeredness (also known as elite-centeredness) embedded itself in KMT administration for decades. 14 Not only officials who took charge of economic affairs but also officials who took charge of environmental protection, public health, finance, and other areas were accustomed to exercising autonomous rulemaking powers as a regulatory tool in the absence of any power-balancing mechanism. 15 By analyzing the statistics concerning administrative rules that derive from a governmental gazette (here, the Gazette of the Office of the President), we can grasp how the KMT government operated with and without legislative delegation between 13 See ROBERT WADE, GOVERNING THE MARKET: ECONOMIC THEORY AND THE ROLE OF GOVERNMENT IN EAST ASIAN INDUSTRIALIZATION , (1990). In commenting on the KMT s economic policy of fostering entrepreneurs, Peter Evans notes, [W]ithout the autonomy made possible by a powerful bureaucratic apparatus, it would have been impossible to impose the unpleasantness of free competition on such a comfortable set of entrepreneurs. See PETER EVANS, EMBEDDED AUTONOMY: STATES & INDUSTRIAL TRANSFORMATION 59 (1995); Jayasuriya, Kanishka, Political Economy of Democratization, in TOWARDS ILLIBERAL DEMOCRACY IN PACIFIC ASIA 107, (Daniel A. Belle et al. ed., 1995); John Gillespie, Law and Development in the Market Place : An East Asian Perspective, in Kanishka Jayasuriya ed., LAW, CAPITALISM AND POWER IN ASIA: THE RULE OF LAW AND LEGAL INSTITUTIONS (1998). 14 For a comparative perspective, please also refer to Japan s and South Korea s similar experiences parallel between S.K. and JP. See CHALMERS JOHNSON, MITI AND THE JAPANESE MIRACLE: THE GROWTH OF INDUSTRIAL POLICY: (1982). Ha Myoung Jeong, The Delegation Doctrine and Administrative Procedure Acts in the United States and Korea (2001) (unpublished SJD Dissertation, University of Wisconsin Law School) (on file with the University of Wisconsin Law Library). Ha Myoung Jeong attributes the loose control of administrative rules to historical (dynastic Korean and colonial Japanese rule), cultural (Confucianism), and political (threats from North Korea) reasons. 15 Wade has pointed out that, in the process of Taiwan s economic growth, the selective ruling elite played an important role. See Wade, supra note 13, at

7 1950 and As Figure 4-1 shows, in the era of economic take-off (the 1950s, the 1960s, and the 1970s), the number of administrative rules was extremely low, whereas the aggregate number of administrative rules increased sharply in the 1990s. A possible rationale is that the agencies did not even bother to carry out rule-bound regulations under the authoritarian regime. As mentioned earlier, the KMT as the dominant party reigned over the island. It was not necessary for the KMT technocrats to enact administrative rules that reciprocally authorized the technocrats exercise of regulatory power. They could promulgate a three-year economic project, a framework of industrial development, or a statement of national policy for the purpose of regulation. In fact, technocrats under the KMT played the role not only of administrators but also of pseudo-lawmakers. Those administrative rules perhaps were not constitutional but functioned effectively to promote economic growth under the KMT s party-state politics. After democratization, the number of administrative rules underwent a dramatic 3.5-fold increase in the 1990s. The statistics that prove the existence of this increase reflect a significant fact: political democratization and judicial activism, both of which simultaneously occurred in the 1990s, prompted the administrative agencies to adopt new regulatory means. 17 As more and more members of the rival party, the DPP, were elected to the Legislative Yuan, they tried to institute and strengthen the government s commitment to transparency and to accountability. Besides, under the environment of political liberalization, there was more and more administrative litigation challenging the government s arbitrary decision-making. So the post- martial law KMT administration was trying to avoid undesirable litigation by enacting broad and unconstrained written rules that granted carte blanche power to the administrative agencies; in this way, the KMT hoped to maintain its developmental regulatory regime A methodological note: to the present purpose, I coded only administrative rules published in the Gazette of the Office of the President between 1951 and Though many ministerial gazettes also 150 publish administrative rules on different subject matters, it is hard to code administrative rules in each field because Taiwan did not and does not have a system like the Federal Register in the United States. 100 Since the Gazette of the Office of the President is the most longstanding 84 governmental gazette constantly published in Taiwan, I selected it for the purpose of sampling Chang Wen-chen, Transition to Democracy, Constitutionalism and Judicial Activism: Taiwan in Comparative Constitutional 0 Perspective (2001) (unpublished JSD dissertation, Yale Law School) (on file with author)

8 FIGURE 4-1 TOTAL NUMBER OF THE THREE TYPES OF ADMINISTRATIVE RULE IN TAIWAN 7

9 According to general textbooks of administrative law in Taiwan, there are three types of administrative rules: (1) rules that are issued on the basis of agencies organic authority, without any legislative delegation, but that have external legal effects on people s rights (or so-called authority regulations, zhiquan mingling); (2) rules that are issued on the basis of legislative delegation and that have external binding effects on people s rights (or so-called statutory regulations, faguei mingling); (3) rules that have only internal effects and that need no legislative delegation (or so-called administrative orders, xingzheng queizhe). 18 As Table 4-1 shows, even in the 1990s, government agencies preferred authority regulations to statutory regulations. Apparently, authority regulations would provide agencies with more discretionary power in any area of regulation. Once the organic law of an agency has conferred authority to that agency, bureaucrats can promulgate a rule whenever and wherever they see it as appropriate and necessary, without legislative delegation from the Legislative Yuan. It seems that during the early years of democratization, the government was still apt to use authority regulations to deal with emerging challenges in Taiwan. From the perspective of the rule of law as laws of rules, the KMT government in the 1990s seemed to get closer to vindicating the rule of law by instituting administration that was more rule-bound than before. 19 But of these administrative rules, 63.64% were rules without legislative delegation. In other words, the executive branch promulgated over half of the administrative rules without legislative delegation. These rules can still be products of arbitrary and capricious administration. If one regarded the increase of authority regulations as an achievement of the rule of law, the meaning of rule of law might be reduced to a nominal one. Nevertheless, the percentage of authority regulations in the 1990s was even higher than the percentage of authority regulations in the 1980s (51.19%). From the 1980s to the 1990s, the number of authority regulations underwent an approximately 4.4-fold increase, while the number of statutory regulations underwent only a 3.25-fold increase. Apparently, with the intensification of democratization, the government relied more and more on the non-delegated rules to advance its state-building. Meanwhile, the Legislative Yuan was increasingly enacting enabling laws that delegated legislative power to agencies. In the 1980s, the number of statutory regulation was only 24, but the number rose up to 78 in the 1990s. These data indicate that the legislative branch has also tried to control the process of state-building in the aftermath of democratization by way of legislative delegation. However, the legislature was also in transition and still had an 18 See Wu Geng, supra note 11, at Chang Wen-chen, Reforming the Procedure of Rulemaking: A Proposal of Designing Multiple and Optimal Procedures (1995) (unpublished LL.M. thesis, National Taiwan University) (on file with author). 19 ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW p? (1997). 8

10 insufficient capacity to create enabling laws able to respond comprehensively to urgent state-building needs at this stage. At the early stage of democratization, it seems that the executive branch still dominated the agenda of rule-of-law reform. It has been hard for the executive branch to transform its administrative pattern from a state-directed development model to a checks-and-balances model spontaneously. The executive branch would choose an instrument that would adequately preserve the branch s discretionary power but that would satisfy the nominal rule-of-law requirements. Therefore, administrative agencies in transition usually adopted an ad hoc strategy of rule-of-law reform. In particular, most of the administrative agencies still consist of bureaucrats recruited and trained under the authoritarian regime. They can carry out governmental policies faithfully, but will not spare their time in drafting enabling laws that would give political credit only to politicians and that might lessen the bureaucrats regulatory power in many ways. Bureaucrats during democratization have remained bounded by their instrumental reason and accustomed to the decision bias of authoritarian administration. Their first and foremost concern during this transition process has been self-preservation. Democratization did prompt the executive branch to carry out institutional changes, but the changes have occurred only in a minimalist way. The change of administrative rules might need some exogenous variables to affect the structure of bureaucratic decision-making. 20 In fact, the revitalized legislative branch has been gradually reclaiming its power from the executive branch. Therefore, the Legislative Yuan s enactment of the Administrative Procedure Law may play a role of agenda-setter to catalyze the institutional change in a more profound way. 20 ELINOR OSTROM, UNDERSTANDING INSTITUTIONAL DIVERSITY, Princeton (2006). 9

11 TABLE 4-1 NUMBER AND PERCENTAGE* OF THE THREE TYPES OF ADMINISTRATIVE RULE Authority Regulations a Statutory Regulations b Administrative Orders c Year E.Y. Agencies Sub- % E.Y. Agencies Sub- total total % Sub- E.Y. Agencies total % Total Source: Gazette of the Office of the President, Taiwan, Notes: a. E.Y.: the Executive Yuan b. Authority Regulation: Externally binding, affecting people s rights, based on the authority of organic law but without delegation by congressional law c. Statutory Regulation: Externally binding, affecting people s rights, with delegation by congressional law (viz. Rechtsverordnung in German administrative law) d. Administrative Order: Internal interpretative rules or rules of a subsection s organization (viz. Verwaltungsvorschrift in German administrative law) * The percentage is the number of a given type of rule divided by the sum of all three types of rules. ** These data are only a calculation of the administrative rules publicized in the Gazette of the Office of the President; they should be by no means regarded as the total composition of administrative rules during this time Type I Type II Type III FIGURE 4-2 PERCENTAGE DISTRIBUTION OF THE THREE TYPES OF ADMINISTRATIVE RULE IN TAIWAN 10

12 4.2. The Race for Legitimacy: Administrative Procedure Law and the dilemma of legislative overreaction Legislating Administrative Procedure in a New Democracy In this section, I first introduce and analyze the legislative process of the Administrative Procedure Law in Taiwan (TAPL). Then I compare three existing theories about why Taiwan passed TAPL, including the insurance theory of Tom Ginsburg, the current control theory of Jeeyang Rhee Baum, and the sequence theory of John Ohnesorge. Finally, I submit my explanation regarding the Legislative Yuan s decision to legislate the rigidly controlled rulemaking in the TAPL, an explanation that may improve our understanding of the origin of general administrative procedure law in Taiwan. After twelve years of democratization, Taiwan enacted its very detailed Administrative Procedure Law (TAPL) in This fundamental statute regarding administrative operations was first advocated in the mid-1980s, when Taiwan was just launching into its political liberalization and democratization. Some advocates of the TAPL, especially legal scholars, anticipated the need to implement procedural safeguards of law so as to constrain the unfettered state power and to enhance the process of democratization. With the support of young public law scholars, the Council for Economic Planning and Development (CEPD) at the Executive Yuan initiated a task force in 1989 to research the legislation problems of the TAPL. The task force submitted a detailed though jargon-loaded draft of the TAPL in December But the KMT government in the early 1990s was reluctant to introduce the draft into legislation, so it argued that, if enacted, the TAPL would undermine efficient administration and would impede Taiwan s economic growth. 21 However, as mentioned at the beginning of this chapter, burgeoning social groups like environmental activists began to organize social protests against the government and tried to participate in the policymaking process, as well Please refer to the opinion of then Justice Weng Yueh-sheng; see FAWUBU XINGZHENGCHENGXUFA ZHIDING CILIAO HUIBIAN(I) [COLLECTED MATERIAL REGARDING DRAFTING THE ADMINISTRATIVE PROCEDURE LAW (I), hereinafter Collected Material] 16 (1992), Ministry of Justice (Taiwan). In fact, before the MOJ s draft in the 1990s, there were already other governmental projects regarding the APL. The earliest research project was initiated by the Research, Development and Evaluation Commission (RDEC) at the Executive Yuan in However, that project aimed mainly at collecting legislative material from the United States and European countries. It did not contribute to the drafting directly. Another project was the CEPD project, which turned out to be the intellectual foundation of the MOJ s drafting. For an illuminating introduction to the legislative process of Taiwan s APL, see JIUNN-RONG YEH, MIANDUI XINGZHENGCHENGXUIFA [WHEN TAIWAN CONFRONTED THE ADMINISTRATIVE PROCEDURE ACT, ] (2002). 22 Yun Fan, Taiwan: No civil society, no democracy, in CIVIL SOCIETY AND POLITICAL CHANGE IN ASIA: EXPANDING AND CONTRACTING DEMOCRATIC SPACE 164 (Muthiah Alagappa ed., 2004). P?? 11

13 Meanwhile, the KMT government confronted its legitimacy crisis. A large-scale student protest in the Chiang Kai-shek Memorial Hall demanded that the government abolish the Temporary Provisions. Meanwhile, the Council of Grand Justices announced Interpretation No. 261, which forced the non-elected representatives of the National Assembly, the Legislative Yuan, and the Control Yuan to leave their offices. All these events occurred in the first two years of the 1990s and pushed the incumbent government to justify its political legitimacy by deepening democratic practices. In 1991, the Ministry of Justice (MOJ) instituted an official committee to draft the second version of the TAPL. Though the MOJ s version was similar to the CEPD s, the Executive Yuan feared that it would lose much of its discretionary power in the policymaking process. Therefore, in the final draft of 1995, the Executive Yuan rejected a whole chapter of rulemaking that constituted the core issues of both the CEPD s and the MOJ s drafts. In fact, the MOJ s representative had argued in the drafting committee that the definition of administrative rule had been prescribed in another statute, namely the Statutory Promulgation Act, so there was no need to double prescribe, as it were. 23 Furthermore, the Executive Yuan referred to the Japanese legislation, itself known as the Administrative Procedure Law (Gyôsei Tetsuzuki Ho), which Japan had passed in The Japanese APL provided only two types of administrative action: administrative disposal (gyôsei shôbun) and administrative guidance (gyôsei shidô). The Japanese experience provided excuses with which the KMT government could refuse sweeping legislation. In fact, by narrowing the focus, the KMT government further revealed its reluctance to restrain itself from exercising discretionary power. However, after the Executive Yuan submitted the bill to the Legislative Yuan in 1995, the TAPL legislation began an unexpected journey of political competition among different parties. Earlier, in 1994, some legislators who were mobilized by the KMT Legislator Wu Tong-sheng, a Harvard-trained lawyer, had submitted the MOJ s draft to the Legislative Yuan independently. And earlier still, in 1993, a group of DPP legislators had submitted the CEPD s draft to the Legislative Yuan as well. These enthusiastic legislators had undertaken these efforts in cooperation with young legal scholars just returning from abroad, especially from Germany. The scholars sought to lock in the German Rechtsstaat doctrine by means of the TAPL legislation. In 1995, Legislator Xie Qida (of the New Party), the chairwoman for the Committee on Legal Affairs at the Legislative Yuan, invited zealous legal scholars to merge these drafts of the TAPL so as to render an integrated bill. Nevertheless, the final draft prepared by 23 Please refer to the opinion of the MOJ s representative Huang Sho-gao; see COLLECTED MATERIAL, supra note 16, at

14 Legislator Xie turned out to be an amalgamation of foreign legislation, which included the German notion of administrative decision (Verwaltungsakt), the rulemaking process of the United States, the French concept of administrative contract, the Japanese creation of administrative guidance, and the traditional Chinese practice of petition. 24 Finally, in January 1999, the Legislative Yuan read and passed Legislator Xie s bill. The newly enacted TAPL provided a moratorium of two years for the government to prepare the practice of TAPL. The hybrid legislation represents Taiwan s aspirations to become a new democracy in which the protection of fundamental rights would be achieved through effective constraints on the executive powers. 25 The most controversial section in the TAPL is about rulemaking. According to Articles 150, 158, and 159 of the TAPL, except for administrative orders that have only internal effects, every administrative rule should obtain legislative delegation from the Legislative Yuan in advance. Meanwhile, the purpose, content, and scope of legislative delegation must be clear, concrete, and specific. Thus, an administrative rule based on the agency s organic law or a general delegation, like authority regulations, would be invalid under the TAPL. 26 In fact, this legal issue of the TAPL triggered fierce debates in Taiwan s legal circles. 27 However, in the legislative process, the provision regarding administrative rule 24 The statute adopts mainly the German Administrative Procedure Law swap?[verwaltungsverfahrensrecht] but adopts also some specific legislation, such as the king s action (fait du prince) principle found in the administrative contract from France, the freedom of information of the United States, and the administrative guidance (gyousei shido) of Japan. Meanwhile, insofar as the Chinese people used to beseech the government for justice in the form of a petition (Qing-yuan), the Taiwanese APL retains this traditional Chinese custom. 25 Please refer to the comment of Legislator Xie Qi-Da, Committee Meeting on Administrative Procedure Law before the Joint Committees, 85 LEGISLATIVE YUAN GAZETTE 212 (1996). 26 XINGZHENG CHENGXUFA [ADMINISTRATIVE PROCEDURE LAW, hereinafter APL] art. 150, art. 158, and art. 159 (Taiwan). See Chang Wen-chen and Yeh Juinn-rong, Zhiquan Mingling yu Sanquan Zhengzhi: Yi Xingcheng Chengxu Fa Di Yibeiqishisi Tiao chi Yi wei Zhunxin [On Administrative Rule Based on Organic Authority and Separation of Powers: Focusing on Article of the Administrative Procedure Law] 1-2 (Nov., 2002) (unpublished manuscript presented at the Second Annual Conference of Practice and Theory of Administrative Law in Taiwan) (on file with author). 27 A great body of literature focused on this issue in the year See Hsu Tzong-li, Zhiquan Mingling shifo Haiyo Mingtian? Lun Zhiquan Mingling de Hefaxing gi qi Shiyung Fanwei [Does Administrative Rule Based on Organic Authority Have a Future? On the legality and application of administrative rule based on organic authority], in XINGZHENGFA ZHENGYIWENTI YANJIU [CONTROVERSIAL QUESTIONS IN ADMINISTRATIVE LAW] (Weng Yueh-sheng ed., 2000); Yeh Juinn-rong, Xingzheng Mingling [Administrative Rule], in XINGZHENG FA [ADMINISTRATIVE LAW] (Weng Yueh-sheng ed., 2000); Dung Bau-tschen, Buntu Zhiquan Mingling Fali Jiango zhi Changshi [An Attempt to Establish the Legal Framework of Indigenous Administrative Rule Based on Organic Authority] 11 TAIWAN BUNTU FAXUE [TAIWAN LAW JOURNAL] 93, (2000); Fa Jyh-Pin, Zhiquan Mingling yu Sifa Shengcha [Administrative Rule Based on Organic Authority and Judicial Review] 11 TAIWAN BUNTU FAXUE [TAIWAN LAW JOURNAL] 100, (2000); Symposium, Zhiquan Mingling zhi Guoqu, Xianzai yu Weilai [The Past, Present, and Future of Administrative Rule Based on Organic Authority] 11 TAIWAN BUNTU FAXUE [TAIWAN LAW JOURNAL] (2000). 13

15 has changed several times. The CEPD draft, a scholarly product, did not expressly prohibit authority regulations. It provided that only those administrative rules affecting people s rights shall obtain legislative delegation in advance. Otherwise, agencies may envisage administrative rules on the basis of the agencies own organic authority. The MOJ s draft did not even mention legislative delegation, and the Executive Yuan canceled the whole chapter of administrative rule. It was the integrated version of Legislator Xie that expressly denied the legality of authority regulations. However, during the second-reading process in the Legislative Yuan, some legislators expressed their dissent regarding this rigid legislation. Legislator Liu Guang-hua (KMT) argued, [T]he legal academia shall abandon its stereotype of the executive branch, which regards bureaucracy as stubborn, departmentalistic, and reform-resistant. Legal scholars shall pay more attention to the research on public administration, especially to that on organizational behaviors. 28 After deliberation, the second-read bill reinstated the provision that an agency can make administrative rules on the basis of its organic authority. Nevertheless, in the final reading, the Legislative Yuan passed the integrated version, which was the brainchild of Legislator Xie s team and which had the most rigid administrative-rulemaking requirement among all the drafts. In general, the second-reading bill would be the final version in the legislative process. It was a very rare case that after the second reading, the Legislative Yuan would revise a bill during the third reading, in which bills formerly were read out loud in front of all legislators and voted on. The Legislative Yuan passed the TAPL on January 15, 1999, right after the fourth-term legislators were elected and only a few days before the third-term legislators were to leave office. Despite remaining the largest party in the Legislative Yuan, the KMT was barely able to control the majority of legislators. When the opposition parties, the DPP and the New Party, cooperated with each other, they only needed three more votes from the KMT legislators to pass a bill. In fact, there were eight KMT legislators already endorsing Legislator Xie s bill. 29 Meanwhile, before the Legislative Yuan voted on the TAPL, major parties conducted negotiations with one another, discussing controversial statutes in the TAPL. Of the eight party-delegates in negotiation, only one was from the KMT: three members hailed from the New Party and four from the DPP. In addition, the KMT representative even lacked legal expertise and held no strong opinion on the bill. Therefore, the legislators from the New Party and the DPP tightly cooperated with one another to dominate the 28 Please refer to the comment-in-writing of Legislator Liu Guang-hua, Wuoguo Xingzheng Chengxu Fa zhi Zhengdian, Lunzheng yu Xing Shijie [The Questions, Arguments, and New Visions of Our Administrative Procedure Law], 87 LEGISLATIVE YUAN GAZETTE 173 (1998). 29 Legislative Yuan Sitting Record, 88 LEGISLATIVE YUAN GAZETTE 606 (1999). 14

16 legislative process of the TAPL Why Taiwan s Administrative Procedure Law Promotes Rigid Statutory Control of Administrative Rulemaking During the 1990s, two other East Asian countries also launched legislation along the lines of administrative procedure law. Japan passed its Administrative Procedure Law in In the same year, the first civilian president in South Korea, Kim Young Sam, set up the Presidential Commission on Administrative Reform aiming to prepare a draft of the Administrative Procedure Law in South Korea. The South Korean Administrative Procedure Law was passed in Why these Asian countries in the 1990s wanted to adopt Administrative Procedure Laws has attracted scholarly attention in recent years. To answer this question, John Ohnesorge provides a grand theory of the relationship between developmental states and administrative law. According to Ohnesorge, by adopting APLs, these developmental states may provide a credible commitment to economic actors, especially foreign investors. In his words, [T]he interests of a pro-growth polity align naturally with those of business, particularly where the state preceded historically the rise of industry, and participated in its creation, as occurred in Northeast Asia. 31 He further applies the analysis of path-dependency to explaining the different sequences of liberal legality (pluralist administrative law), industrialization, and the regulatory state in three geographic areas: the United States, Germany, and Northeast Asia. He argues that, in Northeast Asia, the interventionist state emerged in conjunction with industrialization, which molded the relationship between the state and private industry into a mutually dependent relationship. 32 Therefore, pluralist administrative law was delayed until changes in the mutually dependent relationship between the state and private interest groups. Once the relationship between the government and private interests was more separated and decentralized, administrative procedure laws were deemed as a credible commitment to empower judicial independence See id. at 607. The chairperson of this party-negotiation meeting was Legislator Huang Er-hsuan (DPP), who had studied public policy at the University of Tokyo. The only KMT representative was Legislator Wang Ling-lin, who was a CEO of Eastern Multimedia Group. In addition to the three parties whips, Legislators Xie Qida (NP), Huang Guo-zhong (NP), Pong Shao-jin (DPP), and Hsu Tian-tsai (DPP) attended the meeting. Of them, Xie and Pong had been prosecutors, and Huang had received an LL.M. degree from Yale Law School. 31 John Ohnesorge, Western Administrative Law in Northeast Asia: A comparativist s history 215 (2002) (unpublished S.J.D. dissertation, Harvard Law School) (on file with the author). 32 Id. at Id. at 251. Also see John Ohnesorge, Politics, Ideology and Legal System Reform in Northeast Asia, in GLOBALISATION AND RESISTANCE: LAW REFORM IN ASIA SINCE THE CRISIS 105 (Christoph Antons & 15

17 Ohnesorge s comparative historiography of Northeast Asian administrative laws delivers a macro-analysis of institutional evolution through the dialectic relationship between the state and industry. Turning to the micro-level, and drawing from the theory of rational choice, Tom Ginsburg argues that political actors would desire administrative procedure law when they have a short time horizon and relatively few measures with which to control the bureaucracy. 34 In South Korea, the newly elected presidents had to face various challenges in the aftermath of democratization; indeed, their political statuses were under threat all the time. They might want to secure their interests through the APL so that upon performing poorly in a future election their party would not find its political interests easily overturned by rival parties. Meanwhile, owing to the heritage of strongman politics, South Korean parties are known to be relatively weak and do not have informal mechanisms for controlling the bureaucracy. Therefore, South Korea has adopted comprehensive APL legislation, which features a notice-and-comment-type procedure of rulemaking. In doing so, political actors can expand the justiciability of administrative cases and diffuse the monitoring functions to constrain bureaucracy. 35 In contrast, until 1993, the Liberal Democratic Party (LDP) dominated Japanese politics (for thirty-eight years following the end of World War II). Since the LDP enjoyed a stable political monopoly and its party machine had developed various measures to control the bureaucracy, like personnel meetings or the policy coordination apparatus of Shingikai, it had less incentive to adopt stringent APL, whose policies would be financially costly to implement. 36 Thus, it was not a surprise that the entire rulemaking procedure was omitted in the Japanese APL. On this premise, Ginsburg further argued that the TAPL lies somewhere between the Korean and Japanese statutes. 37 Since the KMT had reined in Taiwan for a long time, the party machine also had informal channels for controlling the bureaucracy. Meanwhile, the KMT did not see any strong competitor on the horizon during the 1990s, so it was not be willing to adopt an APL as stringent as the South Korean legislation. However, the KMT was also afraid of possible future electoral losses, so it still needed a procedural mechanism to guard its interests. Following the logic of positive political theory, which regards administrative procedure law as the mechanism of controlling bureaucracy, Jeeyang Rhee Baum Volkmar Gessner eds., 2007). 34 Tom Ginsburg, Comparative Administrative Procedure: Evidence from Northeast Asia, in 13 CONSTITUTIONAL POLITICAL ECONOMY 247 (2002). 35 Id. at Tom Ginsburg, Dismantling the Developmental State? Administrative Procedure Reform in Japan and Korea, 49 AM. J. OF COMP. L. 585, 602 (2001). 37 Id. at

18 argues that presidents in South Korea and Taiwan supported the APL because they had problems controlling the current bureaucracy rather than problems securing their interests under the threat of possible future electoral losses. According to Baum, [T]he more intra-branch conflict presidents face while in office, the more likely they will support an APA. 38 Applying this logic to Taiwan, Baum offers an elaborate story to explain why President Lee Teng-hui supported the enactment of TAPL. After the constitutional amendment of 1997, Taiwan adopted the semi-presidential system and lowered the threshold of the no-confidence vote from two-thirds to one-half of the seats in the Legislative Yuan. Since it became much easier for the opposition parties to oust the Premier appointed by the President, Lee was forced to cooperate with his opponents in the KMT, namely the non-mainstream faction. In fact, the non-mainstream faction had a closer relationship with the New Party than with Lee. Thus, Lee had to take precautions against these cabinet members. Since these non-mainstream ministers also exercised control over the bureaucracy, they and Lee had common interests in approving the TAPL. Baum argues that, if the lock-in theory (or the insurance theory) holds, Lee should have promoted the TAPL in his first term. But the TAPL was not even on the legislative agenda during his first term. Therefore, Lee did not worry about future electoral loss, but approved the TAPL in his second term because of the present control problem. 39 However, from the record of legislative history, it is hard to argue that President Lee truly supported the TAPL because not one of the most enthusiastic legislators was from the KMT. Besides, in his first term, he had nominated his political rival General Hau Pei-tsun as the Premier. Hau later became the vice-presidential candidate running alongside Lee s independent-party opponent (a former high-level KMT politician and party leader) in the 1996 presidential election. In fact, Lee confronted more political opposition within the KMT his first term than he did second term, but he did not even propose the TAPL legislation in his first term. Post-authoritarian politics in Taiwan simply has not supported the current control theory. The major drive for the TAPL legislation, as Baum notes in her article, is the competition among different parties. 40 In the following paragraphs, I argue that the race for legitimacy among parties in regard to electoral strategy is the core reason for the passage of the TAPL. 38 Jeeyang Rhee Baum, Presidents Have Problems Too: The logic of intra-branch delegation in East Asian democracies, 37 BRIT. J. OF POL. SCI 661 (2007). 39 Jeeyang Rhee Baum, Breaking Authoritarian Bonds: The political origins of the Taiwan Administrative Procedure Act, 5 J. OF E. ASIAN STUD. 365 (2005). 40 Baum points out, KMT reformers wanted to control the bureaucracy, through an APA, in order to rob the DPP of its primary issue [of transparency and participation], thereby effectively stealing the rival party s political oxygen. Id. at

19 It perhaps was not a surprise that the DPP legislators wanted to cooperate with the New Party legislators on the TAPL legislation. Strongly opposing the KMT regime, the DPP had long vowed to overthrow the party-state system and to establish a legitimate regime of democracy. On the other hand, the New Party used to be a faction of the KMT, known also as the Non-mainstream Faction, which had broken off from the KMT owing to ideological divergence from and political clashes with President Lee Teng-hui. The New Party criticized the Lee-led KMT as a corrupt party of black money (i.e., the iron triangle of the KMT, local mafia, and big-money greed). The New Party argued that the current KMT regime had deviated from Sun Yat-sen s political manifesto, The Three Principles of the People. As political fundamentalists, the New Party sought to strengthen its legitimacy by emphasizing their support for the rule of law. Therefore, with zealous public law scholars, the New Party and the DPP phalanx grasped the momentum of administrative-law reform, while the KMT regime struggled to acquire legitimacy and to transform its political character after democratization. TABLE 4-2 COMPOSITION OF THE LEGISLATIVE YUAN FROM KMT New Party DPP Others The 3 rd Term Seats Percentage (%) The 4 th Term Seats Percentage (%) KMT PFP NP DPP TSU Others The 5 th Term Seats Percentage The 6 th Term Seats Percentage Source: Central Election Commission, R.O.C. * PFP: People First Party; TSU: Taiwan Solidarity Union. ** Pan Blue: KMT, PFP, and New Party; Pan Green: DPP and TSU. 18

20 In fact, though the DPP and the New Party occupied opposite positions on the political spectrum of national identity, both of them attacked the KMT regime in the name of rule of law, or Rechtsstaat. To excel in the rule of law competition, no party would ever confirm authority regulations as legitimate administrative rule, since the ideological discourse of public law in post-authoritarian politics favored the German intelligible principle and the principle of statutory reservation. As mentioned at the beginning of this chapter, the Council of Grand Justices established its case law regarding both doctrines. Therefore, if we were to take the legislative process of the TAPL as an interdependent game in which the DPP and the New Party competed against each other and in which the KMT kept silent to prevent its further loss of legitimacy, the focal point of this game would be the Rechtsstaat legislation. 41 If the DPP backed away from the stringent requirement for administrative rule, the DPP would receive fewer payoffs than the New Party would receive, and vice versa. Because the two parties could communicate with each other, they would, in the game of the prisoner s dilemma, end up choosing the stringent control of administrative rules, which represents the ideal of Rechtsstaat. 42 However, the administrative agencies could not easily comply with such a severe restriction on rulemaking. After the TAPL went into effect, in 2000 the former authoritarian party, the KMT, stepped down and its rival party, the Democratic Progressive Party, came to power. As we have seen in the previous section, after forty years of authoritarian rule, the KMT government had enacted various administrative rules without any legislative delegation. In the course of democratization, authority regulation became the most expedient regulatory instrument with which the technocrat-centered administration could maintain both the developmental state that the KMT had created and a nominal sense of the rule of law. Although the transfer of state power occurred peacefully, the DPP government had to face the KMT legacy of authority regulations and the rigid TAPL framework, the latter of which had been intended to constrain the authoritarian government s power. 43 Under the new TAPL, most of the administrative rules created by the KMT government would be illegal and, indeed, unconstitutional. I should note, as well, that when administrative agencies either request an 41 Here I draw on the idea of the expressive function of law from Richard McAdams; see Richard McAdams, A Focal Point Theory of Expressive Law, 86 VA. L. REV (2000). 42 DOUGLAS BAIRD, ROBERT H. GERTNER & RANDAL C. PICKER, GAME THEORY AND THE LAW (1994). Page missing? 43 Yeh Jiunn-Rong & Chang Wen-Chen, Judicial Empowerment: The Changing Role of the Council of Grand Justices (Oct., 2002) (unpublished manuscript presented during the International Workshop on Challenges to Taiwan s Democracy in the Post-Hegemonic Era at the Stanford Hoover Institution) (on file with the author). 19